Home Health Aide Injured in Car Driven by Her Client Not His "Special Employee"; Defense Summary Judgment Denied

Case: Digirolomo v. Goldstein

Court: Supreme Court, Appellate Division, Second Department, New York

Date: June 27, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

**************************************************

RELATED POSTS:

WORKER WINS SUMMARY JUDGMENT ON LIABILITY ON LABOR LAW CLAIM FOR SHAKY LADDER; NOT A SPECIAL EMPLOYEE

SECURITY GUARD WHO FELL DOWN ELEVATOR SHAFT NOT A "SPECIAL EMPLOYEE" UNDER WORKER'S COMPENSATION LAW; GETS NEW TRIAL

**************************************************

Facts: This case raises the Workers' Compensation issue of "special employee." Under the Workers' Compensation law, an employee injured in an accident can't sue his or her employer for its negligence, or the negligence of a co-worker. So, no lawsuit and the injured accident victim can only receive Workers' Compensation benefits.

"Special employee" is when an employee is injured in an accident by a person who claims that accident victim was working for the wrongdoer, as well. So that there can only be a Workers' Compensation claim and no lawsuit.

An example of a special employee might be a security guard provided by an agency, but posted to another company's premises. If that company pays and controls the worker and provides equipment (say, walkie-talkies), then the security guard might be a special employee of the place he or she is assigned to work.

In this case, the injured employee was a home health care aide hired and sent by an agency, being driven back from a doctor's appointment by the man she cared for at his home. He had a car accident.

Plaintiff sued for personal injury. The driver asserted a defense of "special employee" and brought a motion for summary judgment. The accident victim also made a summary judgment motion because, as a passenger, she claimed she couldn't be held liable for the accident (which makes sense).

The accident victim showed that her agency directed her work and set her hours, and that she called into her agency at the beginning and end of her work day. If the man she cared for had any complaints, they had to made to her agency.

Held: Accident victim wasn't a special employee. Defendant's summary judgment motion is denied. Plaintiff's summary judgment motion on the issue of liability is granted.

Categories